TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 17

unless the statute says so expressly; although the Crown and its agents can take the benefit of any statute. Having regard to the background to the Ordinance, it might be said that section 7 merely puts into more appropriate language what is already encompassed by the conventional words: "This ordinance binds the Crown" and clarifies the law by making all public authorities subject to liability under the Ordinance, even though they are not agents of the Crown. However, I agree with Mr McCoy that it is difficult to accept that this is all that

section 7 was intended to achieve because of the inclusion of the word "only" in the section.

I am unable to accept the argument that sections 3 and 7 are limited in the way suggested by counsel. When the legislature used the words "is repealed" in section 3 it must have intended that the previous statutory provision is repealed, if and to the extent that it does

not admit of a construction consistent with the Ordinance. It must have meant that the previous rule no longer exists because it has effectively been deleted from the statute. It is, in my view, important to remember that the Ordinance only gives to the courts the power to declare that a statutory provision is repealed. It does not give the courts any power to re- write the legislation so as to make it conform with the Ordinance. That is a function which is rightly retained and reserved as the sole prerogative of the legislature. If a court were to declare that a particular statutory provision, wholly and indefensibly repugnant to the Bill of Rights, was only repealed in cases where the Government or some public body is the defendant, but remains in force as between private individuals, I respectfully venture to suggest that the court would be usurping a function of the legislature, and failing in its duty to take notice of, and apply, the law as laid down by the legislature. To construe section 3 as wholly dependent on, or connected with, section 7 would, in my view, rob the section of all reasonable meaning and defeat one of the major purposes of the Ordinance, i.e., judicial

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